Privacy and Civil Liberties Oversight Board Still Struggling to Get Off the Ground

In 2003, the 9/11 Commission recommended that a system be established to safeguard civil liberties in response to the flurry of national security and counter-terrorism legislation. Thomas Keane, chairman of the 9/11 Commission and former governor of New Jersey, showed prescience when he predicted that “anything with a national security label on it will pass” in the years following the attacks, which is why he pushed for civil liberties advocates to have some voice in the debate. The mechanism the commission came up with was the Privacy and Civil Liberties Oversight Board (PCLOB), which Congress officially created in 2004. Just shy of a decade later, the PCLOB held its first public meeting, which mostly served to show how far the board still is from being capable of carrying out its intended functions.

By law, the PCLOB should have significant power to check the overreach of national security legislation in the last decade. The Board is directed by statute to review all proposed legislation and policies related to counterterrorism efforts; continually review all counterterrorism activities of the White House and the executive agencies; evaluate the reports from every executive agency’s privacy and civil liberties officer; testify before Congress upon request; and submit periodic reports to various House and Senate committees and to the president. The Board is supposed to have access to even the most secret government programs, with subpoena power to enforce its demands.

Yet the PCLOB has yet to function as the law requires, due to bureaucratic feet-dragging from both the Bush and Obama administrations and a multitude of political squabbles over appointments to the board. On October 31st, the PCLOB’s first public meeting showed some encouraging signs of life, but also how far the Board has to go be fully functional. The Board was almost completely vacant for about 5 years, after several of its initial appointees resigned in protest. This year, four appointees to the PCLOB were approved by the Senate, two Democrats and two Republicans. The Senate thus far has refused to confirm the Board’s chairman, the only full time member with the ability to hire a staff, so it is unclear to what extent the PCLOB will be able to begin work before its appointed chairman is confirmed by the Senate.

Not only is the PCLOB still non-functional, it is also faced with an 8-year backlog of civil liberties issues to address. A variety of civil liberties organizations attended the first meeting of the PCLOB to offer suggestions on how the Board should direct its efforts and still limited resources. Suggestions for the Board’s attention included: targeted killing, data retention guidelines, secret law, the Patriot Act, fusion centers, FBI “threat assessments,” searches of electronics at the border, government access to third-party data records, the state secrets privilege, the Espionage Act, the FISA Amendments Act, and many other issues. Attendees of the meeting noted that the four active members of the Board seemed grateful for the input of these civil liberties advocates and that their requests for agenda items did not seem to be the usual “box-checking exercise.”

The goal of the PCLOB is not to halt national security legislation, but to help design it so that it does not come at the cost of our civil liberties. Fears that the PCLOB will obstruct national security programs are based on the false assumption that effective national security policies necessarily involve giving up liberties. Policies that keep us safe and protect our liberties can and should be one and the same, which is precisely the goal of the PCLOB. Nearly a decade after it was first proposed by the 9/11 commission, it’s time the Board got to work.